The Framework of Economic and Human Rights Under the ECOWAS Treaty: A Case Study of Implementation in Nigeria

The Framework of Economic and Human Rights Under the ECOWAS Treaty: A Case Study of Implementation in Nigeria

Chapter One

AIMS AND OBJECTIVES OF THE RESEARCH

This thesis aims at realizing the following objectives:

To find answers, or solutions to the problems as highlighted under paragraph 1.2 above. This will be done by analyzing the legal frame work provided in the ECOWAS community
To examine the legal foundation for the human rights jurisdiction of the ECOWAS Court of
To appraise selected human rights decisions of the court with a view to understanding better, the critical role of the court in human rights advancement for a meaningful regional integration in West
Finally, to conclude with some findings and

CHAPTER TWO

CONCEPTUAL CLARIFICATION OF KEY TERMS

Introduction

Under this topic, we shall examine some of the major key terms in this study as follows:

To examine the nature and scope of
The functions and mandate of

The nature and scope of ECOWAS’
The nature and scope of human rights.

In this vein, critical analysis of the above issues shall be made to achieve this aims and objectives.

Nature and Scope of ECOWAS

The Economic Community of West African States (ECOWAS) was founded by treaty on 28^th May, 1975 to advance regional economic integration in West Africa.¹ It comprises the 15 West African States of Benin Republic, Burkina Faso, Cape Verde, Cote D’ivoire, the Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. The main organs of the Organisation were a Treaty Establishing the Economic Community of West African States, May 28, 1975, UN Treaty series 1010,17; International Legal Material 14(1975), 1,200. secretariat, which is hosted by Nigeria, a Ministerial Council, and the Authority of Heads of State and governments – the highest policy and decision-making organ of the Community which meets at least once annually.

At its creation, ECOWAS was mostly, if not exclusively, seen as a regional zone of preference allowed under Article XXIV of the General Agreement on Tariffs and Trade (GATT). The onset of the Liberian conflict at the beginning of the decade of the 1990s appears to have triggered a re- think of this narrow perception of ECOWAS and an expansion of the narrow perception of ECOWAS mandate to actively include human rights, the preservation of regional rights, peace and security. The change in context and mind-sets is aptly captured in the report of the Committee of Eminent Persons (CEP) which undertook the review of the 1975 Treaty as follows:-

Efforts towards the establishment of economic states of community embracing all the states of the West African region were initiated in the early sixties, not long after most of the countries had emerged from colonial domination into independence and statehood. In this formative state, the natural inclination of the countries was in the direction of consolidating their independence and preserving and enhancing national sovereignty. Additionally, interstate relations in the region were generally plagued by deep suspicion and political and ideological differences. Perceptions about national sovereignty and the principle of non-interference in the

internal affairs of the states are now undergoing gradual transformation as the world shrinks more and into a ‘global village’ … Gross abuse of human rights in a state, for example, now elicits prompt international reaction, often in the form of coercive and other measures. More and more countries are now opening their internal political processes, including the subjection of general elections to international observation in order to earn legitimacy for their governments.²

This study seeks to provide a background of ECOWAS firstly, as the oldest Regional Economic Community (REC) in Africa and, within this context, describe, in an outline, the framework of the human rights treaty obligations which ECOWAS member states have undertaken in the Community. This thesis is, firstly, that the result of the revision of the ECOWAS Treaty in 1993, was the creation in ECOWAS of a composite regional economic and human rights framework.

CHAPTER THREE

NATURE AND SCOPE OF THE JURISDICTION OF ECOWAS COMMUNITY COURT OF JUSTICE

Introduction

This chapter aims at providing a background analysis of the ECOWAS Community Court of Justice (ECCJ) and the nature and scope of its jurisdiction in respect of human rights matters.

The ECOWAS Community Court of Justice was established pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of ECOWAS⁶⁶ relating to the Community Court of Justice which clearly states that the Court is the principal legal organ of ECOWAS with the main function of resolving disputes relating to the interpretation and application of the provisions of the Revised Treaty and the annexed Protocols and Conventions.

The primary objective of the administration of Justice is to render justice according to law. The Court is enjoined in Article 9.1 of its 1991 Protocol to ensure the observance of law and of the principles of equity in the interpretation and application of the provisions of the Treaty. The Protocol further enjoins the Court to establish its own Rules of Procedure.

CHAPTER FOUR

PROTECTION OF HUMAN RIGHTS BY THE ECOWAS Community COURT OF JUSTICE

Introduction

Under this chapter, we shall discuss the roles and activities that the ECOWAS Community Court of justice plays in the protection of human rights. Consequently, we shall look at the human rights jurisdiction of the ECOWAS Community Court in their different ramifications. Next, we will consider whether, or not, citizens of ECOWAS member states actually have access to justice under the ECOWAS Community Court. Then, the judicial activism of the community court shall be discussed by examining some selected case law reports on human rights by the ECOWAS Community Court of justice.

The institutional relation between ECOWAS as an international entity and the ECCJ as an institution of ECOWAS necessitates an analysis of the competence of the parent organisation (the ECOWAS) as a basis for investigating the human rights mandate of the Community Court of Justice (ECCJ). The competence of ECOWAS in the field of human rights represents the foundation upon which the exercise of jurisdiction by the ECCJ in that issue area is built. In fact, the question of organisational

competence could be described as a ‘central issue of principle’ and it is unwise to ‘take it for granted that the necessary legal principle and constitutional competence exists’ in this area of activity.¹⁴⁴ The significance of this preliminary inquiry is in the fact that international organisations, unlike states that create the organisations, do not have the freedom to engage in just any field of activity they desire. In the same vein, an international organisation can neither endow its organs and institutions with powers the organisation itself does not have, nor can it empower such organs and institutions to exercise powers the parent organisation does not have.¹⁴⁵

CHAPTER FIVE

CONCLUSION, FINDINGS AND RECOMMENDATIONS

In the preceding chapters, we gave a critical appraisal of the role of ECOWAS community court of justice in the protection of human rights under the ECOWAS Treaty. By examining the nature and scope of ECOWAS functions and mandate, we were able to focus on the jurisdiction of ECOWAS community court of justice in the protection of human rights as well as the rules of procedures, and access to justice, in the ECOWAS community court of justice, towards achieving the desired objectives of this research. The selected cases from the ECOWAS community court further enhanced our understanding of the subject matter and we therefore draw the following conclusions:

Conclusion

The reaction of various actors in the ECOWAS member states to the consequences of such an adopted competence would arguably determine the future of such a judicial institution as the ECOWAS Community Court of Justice (ECCJ). It is however, the reaction of the institution in question that is likely to have the most effect on its own future. A proactive approach by the ECCJ is therefore necessary to shape the future of human rights litigation and protection in the ECOWAS legal system.

The state of human rights in the world today has come a long way since the Universal Declaration of Human Rights was made by the United Nations Organization (UNO) in 1948. During this period, colonialism, and colonial oppression, and exploitation had ended, and had been replaced first, by neocolonial processes, and then later, by globalization in which the subtlety of exploitation and discrimination have become so complex and sophisticated; Soviet communism, and its brand of authoritarianism had collapsed, and had been replaced by a hegemonic uni-polar “new” world order; apartheid in South Africa has been dismantled; many dictatorships, authoritarian, and despotic regimes, have been displaced throughout the world; and globalization, with all its visible, and invisible agenda and implications, has set upon the world.

The celebrated “third wave” of democracy, which has accelerated, in the context of globalization, also has, at the close of the twentieth century, opened up relatively extensive political space, and liberalized the political atmosphere in many post-colonial countries, especially in Africa, where the wind of democratic change systematically blew away one despot after another, thereby setting on course, varying degrees of transitions to democracy.

The concomitant achievements of the struggles against authoritarianism, for democracy, and for the promotion, and protection, of human rights during this period of remarkable, and dramatic global changes have been impressive, as more and more countries aspire to become democratic, and as more and more signed up, and increasingly complied with, the International Bill of Rights, consisting of the Universal Declaration, as well as the associated, and accompanying Covenants, and optional Protocols.

FINDINGS AND OBSERVATIONS

While this research does not pretend to have addressed all conceivable consequences of the human rights mandate of the ECCJ, there are salient issues that are evident from the discourse undertaken in this work. The issues identified in this study include:

the challenges posed by the current composition, structure, and procedure, of the ECCJ for the exercise of its human rights mandate;
the looming potential for conflict with national courts of member states, and supervisory institutions created under human rights instruments, applied by the ECCJ in carrying out an expanded mandate;
the risk of fragmentation of human rights law in Africa, and the dangers in the indeterminate nature of the human rights mandate of the
It is not disputable that the protection of human rights in the ECCJ is a positive development in a region infamous for conflicts ignited by abuse of human

It is therefore essential that effort is made to consolidate the gains of the system, and safeguard the future of the ECCJ as a major player in the field of human rights in West Africa. Other observations are made under the following sub-headings:

Civil and Political Rights

The category of rights that can be considered under the human rights jurisdiction of the ECCJ are those commonly known as civil and political. These are classical rights that are perceived as protection against unwarranted interference from the state and rights that guarantee participation in the affairs of the state. Civil rights protect freedoms and liberties from violation by those exercising public power and intrusion by third parties.¹⁹⁷ Political rights guarantee participation in the public realm and protect the liberties that are instrumental for this guarantee.¹⁹⁸ As already noted, ECOWAS does not have a catalogue of rights containing civil and political rights. However, these rights are present in several other international human rights instruments that ECOWAS has explicitly, or implicitly adopted. These include the UDHR, the African Charter, and CEDAW¹⁹⁹. Considering the explicit mention of these instruments, it is Civil and political rights are also catalogued in the International Covenant on Civil and Political Rights (CCPR) but out of the 15 member states of ECO WAS , one (Guinea Bissau) had not ratified the CCPR as at 3 October 2008 (see http://www2ohchr.org!english/bodies/ratification/4.htm accessed 3 November 2008). It raises the question whether the CCPR should validly be applied by the ECCJ. All ECO WAS member states have ratified the African Charter as at May 2005 (see ratification status at http://www.achpr,org/english/_infofindexjatificationsen.htm I, accessed 15 November 2008). Similarly, submitted that the ECCJ can validly exercise jurisdiction over the rights contained in them, as part of the conventions and treaties of ECOWAS that the Court is empowered to interprete and apply. With regard to the International Covenant on Civil and Political Rights (CCPR), considering that not all ECOWAS member states have ratified that instrument, it is doubtful whether the ECCJ can validly apply the CCPR in reaching its decisions. The doubt arises on two possible grounds: first, on grounds of the doctrine of reciprocity, it is arguable that ‘non-universality’ of ratification would prevent application of the CCPR.

RECOMMENDATIONS

General Recommendations

Although the ECCJ is still not a human rights court, it is now commonly accepted by all players that human rights protection forms a significant part of the Court’s mandate.²³³ Yet, this does not take away the fact that the ECCJ remains the judicial organ of a regional economic community with a primary duty to interprete and apply Community Treaty aimed at facilitating regional integration. Consequently, it would be unrealistic to advocate for substitution of the competence criteria of international law, tilting towards regional integration with a competence in human rights, for qualification to the office of a judge of the ECCJ. However, if the ECCJ has to consolidate its role in the field of judicial protection of human rights, it may be necessary to appoint judges with some demonstrable knowledge in human rights into the ECCJ.²³⁴ In addition to the personal human rights knowledge of the judges, the

The ECCJ recognises this point as indicated by the responses of the Bureau of the ECCJ to questions posed by this writer during a meeting facilitated by the Danish Institute for Human Rights in November 2008 at the ECOWAS Community Court in Abuja, Nigeria.

²³⁴This position was also advocated by the Vice President of the ECO WAS Court during the November 2008 meeting. For him, the human rights competence of prospective appointees should be taken into consideration even though it should not be expressly stated as a criterion for appointment.

selection of research and other judicial staff of the ECCJ should reflect the increasing human rights protector posture of the Court. All of these can be strengthened with concerted capacity building for judges and staff of the Court.²³⁵ It would also be important for ECOWAS to fast-track the establishment of the proposed appellate division in the ECOWAS legal system to address concerns touching on the absence of a right of appeal.²³⁶ While the present Rules of Procedure do not differ substantially from the rules of human rights courts, the ECCJ would do well to strengthen co-operations aimed at providing legal aid to indigent litigants.

In relation to the looming potential for conflict with national and other international judicial and quasi-judicial institutions, there is no short cut towards avoiding potential conflict. Despite opinion to the contrary and the position of the ECCJ itself,²³⁷ it may be necessary to reconsider the question of exhaustion of local remedies before human rights cases come before the ECCJ. This position does not seek to argue that it is ‘unlawful’ or ‘illegal’ not to require the exhaustion of local remedies. It also does not seek to wish away the benefits of easy access to the Court. However, it ²³⁵Judges and staff of the subregional courts seem to agree on the need for capacity building programmes in this regard. This came out both in the meeting with the Bureau and staff of the ECOWAS Court and at a programme facilitated by Interights at Abuja in November 2008.

²³⁶A proposed appellate division of the ECCJ is still being awaited. Interview conducted with the ECCJ in November 2008 indicates that a consultant is currently working on modalities for the appellate division to start.

²³⁷See supra above. would be beneficial in the long run to defer to some sense of the principle of subsidiarity by giving national courts the first opportunity to remedy human rights violations, subject of course to availability and efficiency of local remedies.²³⁸ Some of the consequences of such reconsideration of the question of exhaustion of local remedies is that any appearance of a struggle for primary jurisdiction would be avoided. But it would also allow the ECCJ act in some form of ‘appellate jurisdiction’ and thereby position itself as a judicial hegemony in the sub-region. Even though the ECCJ seems to want to avoid such a role, the reality of human rights litigation is that a human rights court sitting at the international plane necessarily has to review national decisions from time to time. The only way this can be avoided is if the cases only come by way of reference from national courts for the opinion of the ECCJ. This, it must be submitted, would not be a desirable option considering the gains already made by the court. In this regard also, the ECCJ would in the future, need to carefully select its cases in a manner that preference would be given to cases with new issues or cross-cutting consequences. But this would also mean that the ECCJ should build a jurisprudence that has a binding (or at least, very persuasive) effect in the region.

Specific Recommendations

It is recommended that ECOWAS member states should pay particular attention to the following specific recommendations:

Teaching of Civic education in ECOWAS member states’
Acceleration of human rights education for the law enforcement agents in all ECOWAS
Reform of law enforcement agencies, such as the Police Force, Prisons, in all ECOWAS member states.
Reform the judiciary and improve the efficiency of the machine for the administration of justice in all ECOWAS member
The newly enacted Freedom of Information Bill in Nigeria for examples, when adopted by various ECOWAS member states will enhance the right to access information and facilitate accountability and
Introduction of civic and political education programs that would cultivate among all ECOWAS citizens the appreciation of, and respect for, fundamental human rights, the freedoms and the dignity of the human
Making certain socioeconomic rights justiceable in ECOWAS
ECOWAS leaders should live by example in their various
Strengthen the NHRC in all ECOWAS member states to enable it carry out more effectively and efficiently, its tasks and mandate of promotion and protection of human Empower it, and strengthen its capacity to continue to provide inexpensive, non- technical and more accessible service to the public as well as inform and advise the sub-regional governments adequately and appropriately.

Increase ECOWAS member state’s NHRC relative autonomy from other governmental agencies especially the various Ministries of Justice, and provide it with adequate funding. Review the statute establishing

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